McClain v. State

• Decision Date: 03 October 1980
• Docket Number: No. 679S148,679S148
• Citation: 274 Ind. 250,410 N.E.2d 1297
• Parties: Joseph Howard McCLAIN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1297

410 N.E.2d 1297

274 Ind. 250

Joseph Howard McCLAIN, Appellant, v. STATE of Indiana, Appellee.

No. 679S148.

Supreme Court of Indiana.

Oct. 3, 1980.

Thomas L. Ryan, Fort Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant, Joseph Howard McClain, was found guilty in a trial by jury of rape, Ind.Code § 35-13-4-3, and sodomy, Ind.Code § 35-1-89-1. He received a sentence of life imprisonment for the offense of rape. In this appeal the following issues are presented:

(1) The sufficiency of an affidavit for issuance of warrant authorizing a swab emission sample to be taken from the penis of appellant.

(2) Whether appellant was entitled to the presence of counsel at the time the swab emission sample was taken.

(3) Whether testimony of the mother as to what was said to her by her victim daughter was inadmissible hearsay.

(4) Refusal of appellant's tendered instructions defining the crimes of child molesting and rape as defined by statutes enacted after the date of the offenses charged.

(5) Sufficiency of evidence to support the conviction for rape.

Briefly summarized the facts from the record tending to support the verdicts of guilty show that on June 29, 1977, appellant engaged in sexual intercourse and a sodomous act with M. Dickerson, an eleven year old female child. The offenses took place in the house in which she lived with her parents in Fort Wayne, Indiana. At the time appellant was staying at the house as a guest of her father.

I.

Appellant was arrested on July 7, 1977, upon a warrant, and on that same day, a detective of the Fort Wayne Police Department signed an affidavit for a warrant to examine appellant's person for gonorrhea. During the course of an investigative medical examination of the alleged girl victim evidence that she had gonorrhea was discovered. The warrant was issued after appellant refused to submit to the examination. He was taken to the Board of Health where during the course of a procedure the examiner squeezed his penis and obtained a swab of secretion. The presence of gonorrhea was established.

Appellant filed a motion to suppress the test results of this examination which was denied. The positive results were placed in evidence at trial over his objection. Appellant's first challenge to these lab results is that they should have been suppressed on the ground that the warrant authorizing the examination was faulty because it was issued by the magistrate upon an affidavit which did not meet the requirements of Ind.Code § 35-1-6-2 as they existed at the time of issuance.

Before considering the sufficiency of the affidavit, a prior, more fundamental question must be addressed. The premise upon which appellant's claim is based is that the Fourth Amendment and Art. I, § 11, of the Indiana Constitution require the intrusion upon appellant's person to be justified. If the swab emission test of a person under arrest and in custodial detention to gather evidence of a crime is not subject to scrutiny under these constitutional provisions, then the invalidity of the warrant would not render the introduction of the results of such test inadmissible. Upon consideration of the cases in this area the question is not without some difficulty.

In Schmerber v. California, (1966) 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, the United States Supreme Court considered whether the Fourth Amendment applied to a blood test which involved the withdrawing of blood from within the body by means of a needle and syringe. Noting that the Fourth Amendment expressly protects the right of the people to be secure in their "persons", that court then went on to reason on a very general level:

"It could not reasonably be argued ... that the administration of the blood test in this case was free of the constraints of the Fourth Amendment. Such testing procedures plainly constitute searches of 'persons', and depend antecedently upon seizures of 'persons' within the meaning of that Amendment." 384 U.S. at 767, 86 S.Ct. at 1834.

The court observed several times in that opinion that the blood test involved an intrusion into the human body and beneath the surface of the body. It could be argued that swab emission tests of a male person involve no intrusion into the body at all and are therefore critically dissimilar. In United States v. Dionisio, (1973) 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67, it was argued that a grand jury directive to make a voice recording was an infringement of rights under the Fourth Amendment. The court rejected this argument reasoning that the voice like facial characteristics and handwriting is constantly exposed to the public and that no person can have a reasonable expectancy of privacy in one's voice. The court was persuaded that the compelled voice exemplars were "immeasurably further removed from Fourth Amendment protection" than were the intrusion for blood extraction in Schmerber or the pat down in Terry v. Ohio, (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, which intrusions had previously been determined to require constitutional justification. Terry v. Ohio, supra.

In Cupp v. Murphy, (1973) 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900, the United States Supreme Court considered whether the Fourth Amendment provides protection where scraping the fingernails for evidence of crime was involved. The cutting and cleaning of fingernails involves very minor discomfort. It is a hygienic routine to which most human beings are accustomed, since most have been subjected to it on a regular basis from early childhood. It would not ordinarily create in one a feeling of fear, anxiety or humiliation. It does not ordinarily create any risk of injury or infection. No special skills would be required of one to safely conduct such an examination. In spite of the minor nature of the procedure, the court held that it, like the blood test and pat down by officers, went beyond the region defined by voice exemplars, handwriting and fingerprinting, and is subject to constitutional scrutiny.

In a case quite similar to the one at bar, a federal circuit court of appeals has considered whether a penis scraping invoked the protection of the amendment. There the police sought to obtain menstrual blood of the victim's type. The premise of the case is clear that that procedure invoked the protection of the amendment. Brent v. White, (5th Cir. 1968) 398 F.2d 503.

In light of these cases it is reasonable to conclude that intrusions involving examination of the person are not outside the protection of the Fourth Amendment because they involve no probing into the body or beneath the body surface. No subsurface probing was involved in the intrusions considered in Cupp or Terry. It is likewise reasonable to conclude that the touching of the person by law enforcement officials is not excluded from the requirement of justification because it did not involve a great amount of force or create a risk of physical injury. However, it appears clear that some touching, as generally occurs when one is fingerprinted, and the creation of some fear or anxiety, as when one is called before an official government body and required to submit to voice recordings, does not call up constitutional concern. As described in the record in this case, the swab emission test does not involve the insertion of an instrument into body, but the body fluid is forced from it by the application of pressure. However, such pressure would not be less than that applied during a scraping of one's fingernail or during a simple scraping of the skin for dried blood. The risk of injury or the possibility of discomfort attendant to the swab emission test is commensurate with that involved in fingernail scrapings. Further the probability that the swab emission test procedure would create fear, anxiety, or humiliation in the mind of the person examined would be somewhat greater than exists where simply cleaning the fingernails is involved. If a person has a privacy interest of a constitutionally protected nature intruded upon by a fingernail scraping, it would be difficult to say that an equal privacy interest did not exist in body fluids which could show sexual activity. Given the fundamental human interests at stake, the conclusion we reach is that the intrusion involved in the swab emission examination is sufficient in magnitude to require constitutional justification. In this case the State relies upon a search warrant for this purpose, and we now turn to consider its validity.

The affidavit for the search warrant issued in this case omitting the name of the mother and alleged victim read:

"Undersigned affiant swears upon oath that she believes and has good cause to believe that Joseph H. McClain presently incarcerated in the Allen County Confinement Center located in Fort Wayne, Allen County, Indiana, had on June 30, 1977 and still has concealed in or about his person, Gonorrhea, a contagious venereal disease.

That affiant bases her belief and cause for belief on the fact that on June 30, 1977 ... reported to the Fort Wayne Police Department that her daughter ... age 11, had been raped and forced to commit fellatio. Fort Wayne detectives conducted an investigation and the said investigation revealed that when ... was examined at Lutheran Hospital, traces of Gonorrhea were found. The said investigation also led to the arrest of Joseph H. McClain on a preliminary charge of Rape. As a result of the aforesaid information relating to Gonorrhea, Detective Pyne contacted the Sheriff's Department and requested that Joseph H. McClain be examined for suspected Gonorrhea. The affiant was later informed that Joseph H. McClain had refused to submit to the requested examination. The aforesaid medical examination was requested as evidence of a criminal investigation and also to prevent the spread of a contagious disease.

Detective Pyne further...